Majority
p. 873Fourth Department, October, 1922. The People of the State of New York ex rel. William B. Moore, Respondent, v. John Neill and Others, Appellants.
Headnote
Parent and child — ■habeas corpus by father to secure possession of child — doubt as to fitness and ability of relator appearing in record he should have been called as, witness and examined as to his fitness and ability.Appeal by John Neill and others from an order of the Supreme Court, made at the Erie Special Term and entered in the Chautauqua county clerk’s office April 1,1922.
It appearing from the record that there is sufficient doubt as to the fitness and ability of the relator to be a suitable custodian of the child, we think the court at Special Term should have required the relator to be called as a witness and examined upon the subject of his character, fitness and his ability to provide for his child, and the order should, therefore, be reversed and the matter remitted to the Special Term to be disposed of upon the evidence already taken and such other evidence as may be offered by the respective parties. All concur. Order reversed, without. costs, and matter remitted to the Special Term to be disposed of upon the evidence already taken and such other evidence as may be offered by the respective parties.